It’s difficult to judge the entire FTC report based on the excerpts and reports written by The Wall Street Journal. I figured the best I could do would be to ask myself where I draw the line between evil and good, illegal and legal in the behaviors alleged against Google.

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First, the coverage says that Google scraped content from Yelp, TripAdvisor, Amazon, and other sometimes-competitors. Well, of course, Google scrapes content everywhere; that its Job 1. Scraping is no more illegal or evil than reading, just a helluvalot faster. Any site can stop scrapers at the door with robots.txt instructions. Once scraped or read, information itself cannot be copyrighted, so there is nothing evil or illegal about consuming, using, and repeating that information.

It does not violate copyright law to reuse the information itself so long as the use does not infringe on its creator’s presentation of it. In other words, I can read on Yelp that a restaurant is open until 10 p.m. and repeat that in a restaurant listing on my newspaper site without fear; it’s information. (Whether I trust the source of that information and whether I link to it are separate questions that are also worthy of discussion in regards to journalism, where we read and repeat for a living.)

I see nothing wrong with Google and other search engines scraping and retaining content from a site in their unseen databases for the purpose of analyzing that content to decide how to present links to it in search. It is in sites’ enlightened self-interest for that to occur.

I also see nothing wrong with quoting from these services’ content for the purpose of linking to them. I would call that fair use. This is the behavior at the heart of the fight with publishers in Germany, where the word “snippet” is now a legal term, though — like “fair use” — it is not and should not be precisely defined. This is also the behavior that is now being taxed in Spain — that is, those quoting and linking to sites are now required to pay those sites, whether the quoted sites demand it or not. This is what led Google to shut down Google News there. With this law, Spain has attacked the heart of the web.

Now here is where the line would be crossed: If Google republished these services’ content in whole and without permission, then that is a violation of copyright law and Google would be in the wrong. Google and Yelp have tussled over just this in the past; Yelp’s reviews appeared on then disappeared from Google’s Places pages. The Journal’s report says:

When competitors asked Google to stop taking their content, it threatened to remove them from its search engine.

“It is clear that Google’s threat was intended to produce, and did produce, the desired effect,” the report said, “which was to coerce Yelp and TripAdvisor into backing down.”

I can’t tell exactly what happened here. If Google did indeed threaten to stop listing Yelp in search if it stopped Google from wholesale republishing its content, then I would call that an improper use of its power: evil. But I am not sure that is what happened. Yelp disappeared from the Places pages (which since themselves disappeared) but Yelp stayed in search (that’s how I get to it all the time). So without more information, I can’t draw a verdict on this point.

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The next question is whether Google favors its own services in search. I’ve long found this allegation odd. First, publishers routinely promote their own services and fail to promote competitors’. When European publishers attacked Google, they complained that when searching on “running shoes” one finds Google’s ads for its own shoe advertisers and partners atop the page. But I have pointed out that if you go to the “Schuhe” link on Bild.com — the largest newspaper in Europe, owned by one of Google’s betes noires — one finds no promotion of competitors’ offerings. On Google, one does indeed find ads from its shoe advertisers and retailers, clearly labeled, but then on the top screen one also finds links to their competitors in shoespace, Zappos and Nike.

And if one searches for “maps” one finds Google Maps first (they are the best) but then links to competitors Mapquest, Yahoo, and Bing. What publisher does that? Aren’t news organizations supposed to be impartial? Then under this doctrine shouldn’t People promote Us?

That’s an even odder expectation of Google: that it be impartial. I know of no law that decrees that search must be impartial. Hell, a U.S. district judge said that Chinese search engine Baidu had a First Amendment right to be partial and censor search results. I would find it even harder to define impartiality in search than I would in journalism. In fact, I want my search results to be partial, to favor quality, originality, authority, relevance (to my request and ultimately to me), and timeliness (when that is relevant). Impartial search would be noisy, spammed, useless search.

Also note that history’s first ads in search — on Bill Gross’ GoTo.com, which became Overture, which was acquired by Yahoo — featured paid placement in rather than merely alongside search. Indeed, Google had to pay Yahoo $300+ million in settlement for infringing on the patent for advertising in search from Overture. But along the way, it was Google itself that instilled in us the idea that ads should not appear in search and that one should not be able to pay for placement. So Google set that standard. Now it’s true that the FTC makes it living holding commercial entities to their own standards. But to be found guilty of such consumer fraud, Google must have made the promise to which it is now being held. Does it? In its principles, Google says ads should be relevant and labeled — and they are — but doesn’t say anything that I can find about impartiality.

Now if it’s true that Google purposefully and secretly downgrades competitors, I would find that to be a betrayal of the trust we hold in it: evil. I don’t know whether that’s proven here. If Google promotes its own sites without labeling that as promotion, I would find that hypocritical, but I also don’t know whether that is happening here.

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The next allegation in The Journal’s report is that Google restricted advertisers from using data obtained while advertising on Google in campaigns placed on competitors’ services. I’m not sure precisely what this means but I will say that Google — a company that believes information should flow freely — should allow brands that have paid to advertise to use whatever intelligence they gain however and wherever they wish. More broadly, I have argued that point in posts about what both Google and Facebook could do for news, advocating a freer exchange of data about users and content. In any case, The Journal says Google revised its terms to “give advertisers more control over their own ad-campaign data.”

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Finally, The Journal says (in an abbreviated graphic) that Google tried to restrict sites that did search deals from also doing deals with competitors, including Bing. I’d call that just stupid: a red cape for antitrust investigators. The Journal said one investigator cited a lack of evidence of this complaint.

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Please keep in mind two things about this report. First, Journal owner Rupert Murdoch has what one might call in my impolite company a hard-on for Google. Second, a much more reasoned Washington Post report explains that the accidentally leaked report was from the FTC’s lawyers, who tend to itch for antitrust fights, while a separate report from the agency’s economists — who look for impact of companies’ behavior on consumers — argued against taking on Google.

Let’s also remember that it’s the market that made Google as big as it is. In Germany — the front line of the war against Google — the company has its second highest market penetration of anywhere in the world, 50 percent higher than in America. German consumers obviously use and apparently like Google and I must ask whether their media and government are in sync with them. Google argues — and I agree — that there are perfectly good alternatives for every consumer service it offers: Bing for search, Mapquest for Maps, Outlook for mail, and so on.

But — and this is a huge but — there is no easy alternative for advertisers. That is where I have long argued that Google is vulnerable to accusations of abuse of power. When it comes to which advertisers are deemed to be bad actors, Google wields the power of God. Some shopping comparison sites are pure spam and Google is right to ban them. But should we always trust Google to make that decision? I’ve suggested that Google should have a jury of commercial peers help with that judgment.

My bottom line: If Google secretly disadvantages quality — not spammy — competitors, that would be wrong. If Google presented others’ *complete* content without permission and ejected sites that resisted such wholesale copying from search, that would be wrong. But in the Journal report, I don’t see sufficient evidence of either act to definitively declare guilt. More to the point in the discussion of antitrust at the FTC and in Europe, I don’t see cause to break up the company.

The other day, I spoke at length with a European journalist who disagrees with me about Google, Silicon Valley, Eurotechnopanic, and regulation. She reflexively leapt to regulation as a necessary reaction to any company that grows “too big.” I asked her, as I ask many with whom I have this conversation, to show me the statutory definition of “too big.” The issue is not how big a company is but what it does with that size. The issue is not what a company could do with that power but what it does with that power. I also asked her to show me why I should trust government to do a better job managing these processes than the market. The market took care of Microsoft’s excesses, not the EU. And governments in Europe are doing much to damage the net, from the Germany’s Leistungsschutzrecht to Spain’s link tax to the EU court’s right to be forgotten. I acknowledge that I sound like a libertarian when I say this but I will point out that I am a Hillary Clinton Democrat. But I do not favor regulation for regulation’s sake.

I sometimes wish Google would fuck up more so I could criticize it more often. I have criticized Google. But I have defended it because I generally find it to be a good company and because it is often the whipping boy for those who would attack not just Google but the net and its disruption as well as American technology companies. If on the basis of the Journal report you want to see me repudiate Google and call for its dismembering, sorry.

A reporter asked me for reaction to news that Google has put up a form to meet a European court’s insane and dangerous ruling and allow people to demand that links to content they don’t like about themselves be taken down. Here’s what I said:

This is a most troubling event for speech, the web, and Europe.

The court has trampled the free-speech rights not only of Google but of the sites — and speakers — to which it links.

The court has undertaken to control knowledge — to erase what is already known — which in concept is offensive to an open and modern society and in history is a device used by tyrannies; one would have hoped that European jurists of all people would have recognized the danger of that precedent.

The court has undermined the very structure of Sir Tim Berners-Lee’s invention, the link — the underpinning of the web itself — by making now Google (and next perhaps any of us) liable just for linking to information. Will newspapers be forced to erase what they link to or quote? Will libraries be forced to take metaphoric cards out of their catalogs?

The court has, ironically, made Google only more powerful, making it the adjudicator of what information should and should not be found. The court has also given Google ludicrous parameters — e.g., having to decide what is relevant to what; relevant to whom; relevant in what context?

We don’t know how this order will be implemented by the various search engines. One question is what right of notice and appeal a delinked site will have.

If this process is public, as it should be, then doesn’t that have the potential to bring even more attention to the information in dispute? Another question is whether content will be made invisible in Europe but will still be visible — as I hope it will be — in the rest of the world, where the European court has no authority. Will this then allow others to compare search results and make the banned information only more visible? In the end, has the court assured a Streisand effect — or, as the comedian John Oliver said on his HBO show, the one thing that is known about the Spaniard who brought this case is the thing that he does not want known.

Further, what of search engines and sites that have no European offices and thus the court has no authority over them? If they refuse to delink on demand will the court ban these sites for European view?

Finally, I am concerned about the additive effect of this ruling on Europe’s reputation as technophobic or anti-American. Add to this especially various actions in Germany — government officials demanding a “Verpixelungsrecht” (a right to be pixelated) in Google Street View despite the fact that these are images taken of public views in public places; German publishers ganging up on Google to strongarm politicians into passing a law limiting the quoting of snippets of content and now threatening to break up Google — in addition to similarly head-scratching moves in France, Italy, and elsewhere. Is Europe a place where any technology company or investor will choose to work?

You ask about Eric Schmidt and David Drummond cochairing the advisory committee. That is a clear indication of how profound and dangerous this situation is in Google’s view. It so happens I was in Mountain View two weeks ago speaking to the all-hands meeting of Google’s privacy teams and I can tell you they were shocked at the ruling. I also said much of what I’ve said to you there. I am appalled by this ruling. [As a matter of disclosure, Google paid my travel expenses but I have no business relationship with Google.]

I’ve been saying that the publishers I know in Europe are ahead of lots of people here. Guess it’s just the ones I’m lucky enough to know. Martin Stabe links to a dinosaur’s roar from Helmut Heinen, president of the German Newspaper Publishers Association. If I’m getting this right (standard translation caveat for me), he said that web 2.0 content is not journalism. He said that newspapers should use blogs, wikis, and such to reach the public, but that content produced by the public is not journalism. He called “citizen journalism” a fraudulent label. Journalism, he argued, can be done only by talented and well-trained professional journalists and he complained about the cost of making news — the old way, at least. He even criticized media for publishing mobile-phone photos and video readers send in. He fears that this turns “so-called lay reporters or reader-reporters into a collective Paparazzitum.”

The AP conducts a bunch of interviews with European media people and finds what I had found anecdotally: that all in all, they are more optimistic about — and, by inference, better prepared for — the future. More cock-eyed optimism. Note also that Le Monde says its online revenue pushed it to profitability “entirely thanks to online services making up for print losses.” (via Paid Content).